By -Abhishek Sinha
New Law College, Bharati Vidyapeeth, Pune.
ABSTRACT
India is a vast country with world’s largest population. Here, the advent of modernization has made people aware that utmost equality should be maintained between everyone, and people are accepting it as well with an open heart. But this acceptance is not seen every-where, and again, the colours of a male-dominating society come into light, but this time, discrimination is not with the female gender as a whole, rather, it is based on their marital status.
In a culture that India has, one of the happiest moments in the life of a female is when she gets to know about her pregnancy, but this situation is not same for everyone, especially for the unmarried females. The only option left with them is terminating the pregnancy, but, the laws that India had laid down a pathway full of pebbles and stones for single women to terminate their unwanted pregnancy.
KEY WORDS.
Discrimination, Righty to An Equality, Justice, Pregnancy, Termination of Pregnancy.
RESEARCH METHODOLOGY
The Research Methodology for this paper is Comparative wherein Doctrinal Sources like various Statutory Provisions, Acts, Judgements and Research papers have been critically analysed together with keeping in mind the views of the targeted population in the contemporary world.
INTRODUCTION
With a population of 130 Crores (2020 data),[1] it is required that no one is deprived of any basic rights. Basic rights herein include the basic Human Rights and the Fundamental Rights that every human is entitled to for the mere fact of being humans. The basic and the most important Fundamental Rights here is Right to Equality and Right to Life and Personal Liberty, about which is mentioned in the Article 14 and Article 21 respectively of the Constitution of India.
But as a matter of fact, and serious concern, there are many people who are still being deprived the Basic right to Equality and the Right to Life with Personal Liberty.
Citing the example of the recent petition[2] filed by the 25-Years old UNMARRIED girl in the Hon’ble High Court of Delhi for termination of her unwanted pregnancy, which lasted for 24 weeks, where the order was issued by the Hon’ble bench of judges denying her right for terminating the pregnancy in light of the Medical Termination of Pregnancy Act, 2021.
The girl herein the case was basically denied Right to Life with Dignity as in a country like India, where superstitions and blames on the FEMALE GENDER is on its peak, then how could have it been easy for a 25-Years old Unmarried girl to be a single mother and raise a child alone by herself, and that too with no source of income. Speaking the word of the Indian Society, her life would have been nothing less than a hell.
She was also denied the Right to Equality, as here, discrimination was being made on the basis of her marital status, of her being a victim of the most heinous offence- Rape, or not! Although there exist some special provisions given in the Medical Termination of Pregnancy Act of 2021 for those who are the victims of Rape or have been harassed or are married couples.
So, a writ petition was filed in the Hon’ble Supreme Court of India which held that hence forth no one will be discriminated on such grounds and the petitioner was granted permission to abort her unwanted pregnancy even after completion of 24 weeks of her gestation, but on special grounds that the medical professionals at All India Institute of Medical Science give a green flag that there will be no harm caused to the girl/lady in the process of abortion.
Hence, indeed there exist some discriminatory factors from the side of the existing legislations of the Government of India, but they are for the benefit of the people only, or else, if the Judiciary finds the existing legislations vague even today, they are amended through new statutory provisions passed by the legislature, suggested by the Judiciary.
This remarkable pronouncement that made a place as a remarkable case was delivered by Hon’ble Justice Chandrachud and other Judges who comprised the bench at the Hon’ble Supreme Court of India on 22nd Day of July, 2022.
REVIEW OF LITERATURE
The Medical Termination of Pregnancy Act, 1971 was a result of the advancement in science, technologies and the broadening of minds of people in India. But the scope of the Act was not kept that broad and ease and liberty to terminate the pregnancy was given only to married women, or those who were survivors of rape of other inhumane activities. Post the judgement of Justice K.S. Puttaswamy (Retd.) vs. the Union of India And Others[3], a new see through was given to this aspect and the Right of Make Reproductive Choice was given to women under Article 21.
Subsequently, the case of X v. Principal Secretary Health and Family Welfare Department and Another[4] led to further advancement, and finally the Amendment in the MTP Act in 2021, which now allows the termination of pregnancy upto 24 weeks by both married and unmarried woman.
FACTS OF THE CASE.
The facts of the case herein talks about a girl who lives in Delhi but has her primary house in Manipur. She has a bachelor’s degree in the arts, and her parents work in Manipur’s agricultural sector. The had a consensual connection with the boy and discovered she was pregnant after 22 weeks when she had an ultrasound. She was abandoned after her spouse was betrayed. She requested permission to terminate her kid in a Writ Petition to the Hon’ble High Court of Delhi, however she was turned down.
The Bench of Judges at High court denied the permission by stating that the abortion at the 23rd Week of Pregnancy will amount to murder of Foetus, which is not right. They cited the Medical Termination of Pregnancy Act 2021 says that-
“(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.
(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner, –
(a) Where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or
(b) Where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are, of opinion, formed in good faith, that –
(i) The continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) There is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities to be seriously handicapped.
(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2) account may be taken of the pregnant women’s actual or reasonably foreseeable environment.
(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a lunatic, shall be terminated except with the consent in writing of her guardian.
(b) Same as otherwise provided in clause (a), No pregnancy shall be terminated except with the consent of the pregnant woman.”[5]
And the present case does not fulfil any of the conditions as mentioned above in the Section-3 of Medical Termination of Pregnancy Act, 2021, the court cannot allow the woman to abort her child.
The court suggested an alternative that the woman should continue her pregnancy and be kept at a safe place for the remaining period of her gestation and after the delivery of the child, he/she should be handed over to the adoption centres for his future, where he can be safely adopted by any of the couples.
To this the lady considerably argued that it won’t be easy for an unmarried woman to keep a foetus in her womb in a society like that of India, and that too when there is no proper source of livelihood. Added to this, when she has also been deserted by her partner, it won’t be easy for her to continue with the pregnancy, as she has had been suffering with continuous agony and trauma post her desertion.
She also exclaimed that giving birth to a child after such trauma might also affect her as well as her child’s health!
INFRINGEMENT OF ARTICLE 14
Article 14 of the Constitution of India of 1949 is as follows-
“Equality before law – The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”[6]
Article 14 out-laws discrimination in a broad sense and ensures that everyone is treated equally under the law. Because the basic equality principle stated in Article 14 has some ambiguity, each Article has added different provisions to address particular instances of discrimination. According to the Supreme Court, the constitution lays out measures for both affirmative action and protective discrimination. Every person who resides on Indian territory has an equal right to face the law, according to the concept of equality. All of them have the same meanings in the same order. There is no discrimination based on birthplace, caste, race, or religion. It implies that everyone is treated equally and that there is no class-based discrimination.
Article 14 of the constitution is also supported by the International Human Rights’ provisions. All people are equal before the law and are entitled to equal protection under the law[7], according to Article 7 of the Universal Declaration of Human Rights from 1948. In large measure, Article 14 of the Indian Constitution contains the same principle of equality. The Supreme Court declared that the right to equality is one of the fundamental elements of the constitution. The idea of equality is ingrained in the Constitution. The principle of equality is emphasised as being fundamental to the Constitution in the preamble. It implies that any modification to the Constitution that violates the right to equality will be deemed unlawful.
As stated in Article 14 that no one will be discriminated on any grounds, but the Medical Termination of Pregnancy Act of 2021 does not the provision for Unmarried Women, which is a strict violation of Article 14 of the Constitution.
The court states that the Act of 2021 includes provision for termination of pregnancy for those who have been the survival victim of rape and assaults, those who have been divorced or are widows, those women who are not continuing with a good health post pregnancy or those who have been affected with natural calamities post pregnancy, can terminate their pregnancy till 25th week of Gestation. It also lays down provisions for the married women who, due to the defect of contraceptive means have ended up in this state or those women who are disabled or are differently abled can terminate their pregnancy upto the 20th week of gestation.
But this article does not state provision for an unmarried woman who got pregnant during the course of her relationship but has been deserted by her partner post the pregnancy. It strictly violates the Right to Equality of all such women, which is a direct violation of one of their most prominent and important Fundamental Right to which they are entitled.
The Act by not laying any provision for Unmarried Pregnant Women marks a line of differentiation of them from other categories of women as mentioned in the Act of 2021.
In the case of Sudha Sandeep Devgirkr v. Union of India[8], although the term of gestation exceeded Twenty Weeks, the petitioner was granted the right to abort her pregnancy.
INFRINGEMENT OF ARTICLE 21
Article 21 of the Constitution of India of 1949 states that-
“Protection of life and Personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law.”[9]
The right to life is unquestionably the most important of all rights. All other rights that improve the quality of the life at question depend on life itself in order to function. Since human rights are limited to living organisms, it stands to reason that the right to life itself would be in some ways essential. Without it, all other rights would be meaningless or useless. There wouldn’t have been any Fundamental Rights of note if Article 21 had been applied in its original context. This Section will examine the interpretation and application of the right to life by the Indian Supreme Court.
The term “life” as used in Article 21 of the Constitution refers to more than just breathing. It does not suggest a life of bare survival. It addresses a much broader variety of concerns, including the right to a respectable quality of living, the right to financial security, the right to health, the right to clean air, etc.[10]
Because it is necessary to our very existence and without which we cannot exist as humans, the right to life embraces all those aspects of life that give a man’s life meaning, fulfilment, and value. It is the only Constitutional provision that has received the broadest interpretation. Thus, the bare essentials, minimum requirements, and fundamental needs of an individual are derived from the fundamental principle of the right to life.
As stated under Article 21 of the Constitution of India, that no person shall be deprived of Life and Personal Liberty, but in the present case the petitioner was being deprived of the fundamental Right as she was not being permitted to abort her pregnancy and was being forced to continue the same by the Judgement of Hon’ble High Court of Delhi.
But according to Article 21 of the Constitution, a woman’s right to reproductive freedom is an integral aspect of her personal freedom. She has a sacred right to maintain her physical integrity, and not allowing to do so is an infringement of her rights.
In Sundarlal v. The State of Madhya Pradesh[11], though the plea being for the victim of rape, but it was argued that since the minor girl, who was a survivor victim of rape conceived as a result of heinous crime, she should be given Right to Abort the Child.
JUDGEMENT OF THE CASE.
The bench, for the final judgement included Hon’ble Justice D.Y.Chandrachud and Hon’ble Justice J.B.Pardiwala.
On July 21, the Court issued an ad-interim order stating that there is no justification fora excluding single women from the protections of the MTP Act and that, prima facie, a woman’s right to an abortion cannot be denied just because she is single.
According to Justice Chandrachud, one way to make the provision applicable to everyone, regardless of marital status, is to strike down the phrase “for the purposes of clause(a)” in Explanation 1 to Section 3(2) because it is “manifestly arbitrary and violates the woman’s right to autonomy and dignity.“[12]
Justice Chandrachud reasoned that the legislature could not have intended to limit the application of the provision to married women and other women with vulnerabilities as has been classified in the Rules, given the language in Explanation 1, which uses the word “partner” instead of “husband.”[13]
He pointed out that Section 3(2)(b) [14]permits the termination of a pregnancy between the terms of 20 and 24 weeks if two qualified medical professionals agree that the woman’s life or physical or mental health would be seriously endangered by continuing the pregnancy. He believed that Explanation 1, which states that the suffering brought on by an unintended pregnancy may be assumed to represent a grave impairment to the pregnant woman’s mental health, could apply to Section 3(2)(b).
The petitioner was given the following remedy by the Apex Court in a detailed decision dated July 21, 2022: –
- On or about July 22, the director of AIIMS Delhi would set up a medical board in accordance with the requirements of Section 3(2)(d) of the MTP Act.
- The AIIMS will carry out the abortion in accordance with the petition if the Medical Board determines that doing so will not endanger the petitioner’s life. After the procedure is over, the report must be given to the court.[15]
The embryo was older than 25 weeks. As a result, the court instructed the Medical Superintendent of AIIMS to select a Board of Physicians to evaluate the Petitioner. The Board of Directors consisted of a Chair-person, seven Members, and a Member Secretary. After examining the petitioner, the said Board was required to submit a report.
The petitioner, or mother, is a known heart sufferer who had been administered blood thinners, according to a review of the Medical Board’s ruling. The blood thinner administered to the petitioner caused the foetus to have warfarin embryopathy, according to the Medical Board, which had a risky prognosis in terms of the short- and long-term effects, particularly given the cerebral haemorrhage and ventriculomegaly.
The court determined that, given the foetus's above-mentioned condition, the recorded events indicate significant foetal anomalies that could have an impact on the foetus's physical health, even if the pregnancy is allowed to progress. Both the mother and the child would suffer as a result of this. The court therefore came to the conclusion that pregnancy termination should be permitted even beyond 24 weeks because the Amendment Act of 2021 had already been informed and in light of the established legal position established in the various judgments that were taken into consideration.
The court examined a number of instances and discovered that the most recent changes to the MCT are consistent with rulings made in cases such as Shaikh Ayesha Khatoon v. Union of India & Ors (2018)[16], Nisha Suresh Aalam v. Union of India & Ors (2018)[17], Priyanka Shukla v. Union of India & Ors (2019)[18], etc. In each of these situations, termination was permitted after the then-current 20-week period. The court concluded that these cases and the precedent they established were confirmed by the revisions.
Finally, it was decided that the team of medical professionals at the All-India Institute of Medical Sciences will perform the abortion in accordance with the request made before the High Court and reiterated in both the Special Leave Petition and the arguments made by the petitioner’s attorney before this Court if the Medical Board determines that doing so will not endanger the petitioner’s life. Prior to doing so, the petitioner’s intentions must be confirmed once more, and her written consent must be secured following proper identity verification.\
CONCLUSION
The High Court establishes a sound precedent for other cases by granting the petitioner’s request for an abortion after 24 weeks. Even the amendment only permits abortions when the foetus exhibits some major defects, which are also common in this situation, and does not permit every termination beyond 24 weeks. The abortion was permitted by the High Court after considering all the grounds. According to Article 226 of the Indian Constitution, the Supreme Court and High Court in India have the authority to conduct judicial reviews. Abortion was legal after 24 weeks of pregnancy in this instance, as well as in other cases the court had considered. Furthermore, although the permitted time frame in each of these circumstances was 20 weeks, the same was nonetheless permitted because of the necessity of the termination. The ensuing case thus not only establishes a sound precedent permitting abortion after 24 weeks, but also determines that the amendment is consistent with past precedents.
It also sets a milestone for further similar cases that might be faced by the Judiciary. Granting a woman Right to choose whether to keep her pregnancy or terminate was indeed an important verdict as it should only and only be the decision of an individual of how to live his/her life, and that to when a woman is supposed to carry another live within her. It also affects her dignity, as if she becomes a mother of a child born due to the result of the heinous crime of rape or assault, or is an illegitimate child, then the society would not stop in making the life of the mother-son duo a living hell, and that too shall be a question mark on her Right to life with Personal Dignity.
In a society where people are demanding Right to Die with Dignity in the form of Active Euthanasia, people at least should be given such liberty to make decisions regarding the matters that might affect their life in the near future, as having a legal issue indeed changes the life. When the couple/single parent is not ready to have a child and wants to abort the pregnancy, then they should have the soul right to do so (excluding the cases of minors, rape and assault survivor victims, mentally ill or differently abled).
[1]Office of the Registrar General and Census Commissioner of India, Ministry of Home Affairs, Government of India 2020.
[2] X v. Principal Secretary Health and Family Welfare Department and Another Civil Appeal No. 5802 od 2022.
[3] Justice K.S. Puttaswamy (Retd.) v. Union of India and Ors. ((2017)10 SCC 1).
[4] Supra 2
[5] Medical Termination of Pregnancy Act, 1971 (Amendment of 2021).
[6] India Const. 1950 Article 14.
[7] Universal Declaration of Human Rights art. 7
[8] Sudha Sandeep Devgirkr v. Union of India 2018 (11) SCC 572.
[9] India Const. 1950 Article 21.
[10] Swapnil Pattnayak, Volume 2, Issue 4 2018 https://www.ijlmh.com/wp-content/uploads/2019/10/The-Aspects-and-Provisions-of-Personal-Liberty-under-Article-21-of-the-Constitution-of-India-%E2%80%93-A-Detailed-Study.pdf
[11] Sundar Lal v. State of Madhya Pradesh 13 November 1952 AIR 1954 SC 28.
[12] Medical Termination of Pregnancy Act, 1971 § 3, Acts of Parliament, 1971 (India).
[13] Medical Termination of Pregnancy Act, 1971 Acts of Parliament, 1971 (India).
[14] Medical Termination of Pregnancy Act, 1971 § 3, Acts of Parliament, 1971 (India).
[15] 2022 Live Law (SC) 621 https://www.livelaw.in/pdf_upload/621-x-v-principal-secretary-health-family-welfare-department-21-july-2022-426996.pdf
[16] Shaikh Ayesha Khatoon v. Union of India & Ors Writ Petition No 36727/2017.
[17] Nisha Suresh Alam v. Union of India Writ Petition No. 929/2017.
[18] Priyanka Shukla v. Union of India and Ors Writ Petition No. 7080/2019.
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